A dubious document and KR trials

[Published in the Phnom Penh Post, probably the September 27-October 10, 2002, issue.]

Brad Adams’ “comment” in the September 13-26 Post is based on what appears to be a very dubious document.

Adams calls it the Thai government’s “official record” of the May 6, 1998, closed session meeting between Hun Sen and Chuan Leekpai. However, it bears no government logo or insignia, no signature or name of the person who compiled it. It is written in English – clumsy English – which, it seems likely, is not the norm for Thai government documents. Moreover, judging from the reproduction in the Post, the document that was faxed to Adams was pasted together from three or more separate pieces of paper (the edges of two pasted-on pieces are visible on the top half of the first page).

Finally, to compound the contradictions, according to the so-called “Thai government record of the meeting”, there is no such document: The document lists the participants on each side. The Cambodian side includes a “note taker”, but the Thai side does not. Without someone recording the meeting for the Thai government, how can a Thai government record exist?

How are we to explain this strange “record”? The most plausible explanation is that someone faxed to Adams a translation of what the faxer claimed was a Thai government record of the meeting. Did Adams’ source really have access to such a record, and, if so, is the translation accurate and complete? We have no way of knowing. It may also be deduced that Adams does not know. Surely, if he had access to a Thai original, he would have arranged a less awkward English translation; more importantly, he could have told his readers that the document was an accurate translation from the Thai, instead of trying to pass off the unsourced English fax as the “Thai government record”.

On this flimsy basis, Adams accuses Prime Minister Hun Sen of “bad faith”. But the real substance of the accusation is that, in 1997 and 1998, Hun Sen sought ways, other than an international trial, to suppress, remove, or even kill the leaders of the Khmer Rouge who were still directing armed attacks on the government and any unfortunate citizens within their reach. If this accusation is true, one can only say, “Good!”

In May 1998, Ta Mok, Nuon Chea, and Khieu Samphan were not in the Cambodian government’s custody. It was therefore impossible for the government to put them on trial. The United Nations was still officially studying the Cambodian government’s request, made more than 10 months earlier, for assistance in conducting a trial. There was thus no UN-endorsed court that could demand that Thailand hand over KR leaders for trial. In these circumstances, it would have been irresponsible for the Cambodian government not to have sought other methods to end the KR insurgency.

Adams tries to escape this conclusion by downplaying the KR threat. To do this, he also has to downplay the Thai government’s long record of backing the KR. He suggests that this support ceased at some indeterminate point between 1979 and May 1998, except for “elements of the Thai army”. (We thus learn that an element outranks a colonel.) Chuan Leekpai, the Thai Prime Minister in 1998, Adams assures us, was “a reformer and one of the few Thai leaders with no record of involvement with the Khmer Rouge”. This is disingenuous to say the least, considering that Chuan was Prime Minister from September 1992 to July 1995, during which time the KR made free use of their Thai base camps, and considering Chuan’s bare-faced assertion (as quoted in Adams’ document) that Pol Pot had never been in Thailand.

The conclusion of Adams’ article is even more contorted. Cambodia cannot be trusted to conduct a proper trial because all Cambodian prosecutors and judges are under Hun Sen’s thumb. Therefore, the UN should not return to the previous agreement, which gave foreign judges a veto over the decisions of Cambodian judges and prosecutors. Don’t law faculties teach logic any more?

In place of a UN-backed trial, Adams tells us, the politically controlled Cambodian courts should “investigate, indict and arrest” the KR leaders. Adams makes no mention of a trial – and he has told us that Cambodian courts cannot conduct a fair one. Nevertheless, he insists that Hun Sen “immediately” jail at least another three KR leaders. So “justice” requires the KR leaders’ indefinite jailing without trial. This seems a strange position for a human rights lawyer.

What drives Adams to tie himself in such knots? Perhaps it is revealed when he argues against the proposed mixed tribunal by writing: “Many of the states that have offered to provide the judges who are supposed to act as a bulwark against attempts to interfere with the integrity of the trial process have shown themselves quite willing in the past to make private deals with the Cambodian government …”.

Adams mentions only one state – China – that “has expressed a willingness” to provide a judge for the tribunal. It hasn’t. Governments that have stated their intention to help a UN-backed trial (which might take the form of providing a judge or providing financial or other assistance) include Australia, Britain, Canada, the European Union, France, India, Russia, Sweden, and the United States. It would be helpful if Adams could name for Post readers the “many” states from this list which he thinks have done “private deals” with Hun Sen to pervert justice in a KR trial.

But note that Adams’ sweeping accusation doesn’t point to an evil content of any past “deals” between these governments and Cambodia. It seems that, to Adams, the mere act of dealing with the Cambodian government is in itself reprehensible. This prejudice is the sum total of his plea for UN officials to resist rejoining the KR trial process, as they have been asked to do by every member state that has spoken on the subject.